Equal Protection, Strict Scrutiny, and Actions to Promote Environmental Justice

• Date: 01 March 2009

3-2009 NEWS & A NALYSIS 39 ELR 10201

It once might have seemed that the federal policy of pro-

moting environmental justice was on a collision course

with limitations the Equal Protection Clause imposes on

federal actions to benet minorities. In February 1994, Execu-

tive Order (EO) 12868 d irected federal agencies to take spe-

cial steps to ensure environmental protection for low-income

and minority communities.1 In June of the following year, the

U.S. Supreme Court eectively outlawed using race in fed-

eral decisionmak ing by subjecting such uses to strict judicial

scrutiny,2 a standard so rigorous and demanding that it ha s

1. EO 12868, Federal Actions to Address Environmental Justice on Minority Pop-

ulations and Low-Income Populations (Feb. 11, 1994), §1-101 directs that

[t]o the greatest extent practicable and permitted by law, . . . each federal

agency shall make achieving environmental justice part of its mission by

identifying and addressing, as appropriate, disproportionately high and

adverse human health or environmental eects of its programs, policies

and activities on minority populations and low-income populations in

the United States . . . .

2. “[W]e hold today that all racial classications, imposed by whatever federal,

state, or local governmental actor, must be analyzed by a reviewing court under

strict scrutiny. In other words, such classications are constitutional only if they

are narrowly tailored measures that further compelling governmental interests.”

Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228 (1995). By contrast, the

use of classications based on the other focus of environmental justice, economic

status, does not require strict scrutiny. San Antonio Independent Sch. Dist. v.

Rodriguez, 411 U.S. 1 (1973).

e original purpose of strict scrutiny of racial classications was “to protect

‘discrete and insular minorities from majoritarian prejudice or indierence.’”

City of Richmond v. J.A. Crosson, 488 U.S. 469, 495 (1989) (quoting United

States v. Carolene Prods., 304 U.S. 144, 153 n.4 (1938)). us, it was applied

to groups that had been “saddled with such disabilities, or subjected to such a

history of purposeful unequal treatment, or relegated to a position of powerless-

ness as to command extraordinary protection from the majoritarian political

process.” Rodriguez, 411 U.S. at 28.

But the closely divided Court has extended strict scrutiny to racial classica-

tions used to benet minorities. Parents Involved in Community Schs. v. Seattle

Sch. Dist. No. 1, 551 U.S. __, 127 S. Ct.2738 (2007) (Seattle School); Adarand,

515 U.S. at 228. Four dissenting Justices reject strict scrutiny for classications to

benet minorities: “No case . . . has ever held that the test of ‘strict scrutiny’ means

that all racial classications . . . must in practice be treated the same.” Seattle School,

127 S. Ct. at 2817 (Breyer, J., dissenting). And Justice Anthony Kennedy, who

joined the majority, wrote separately to suggest that “it is unlikely” that all “race

conscious” mechanisms used in decisionmaking “would demand strict scrutiny to

be found permissible. . . . Strict scrutiny does not apply merely because” a govern-

mental decision “is performed with consciousness of race,” and “a constitutional

violation does not occur whenever a decisionmaker considers the impact a given

been described as “strict in theory, fatal in fact.”3

No such collision occurred. Not only have t here been no

signicant reported decisions applying strict scrutiny to gov-

ernment actions to promote environmental justice, but the

U.S. Congress has enacted legislation mandating armative

steps to ensure preferential treatment regarding nancial assis-

tance for minority communities.4 is Article discusses four5

reasons why federal actions to promote environmental justice

are not subject to strict judicial scrutiny: (1) the EO applies

to actions by executive branch agencies exercising the core

governmental f unction of executing federa l law, and Article

III limitations on the judicial power preclude federal courts

from applying strict scrutiny to other branches’ performance

of core governmental functions; (2) equal protection applies to

governmental actions that “ deprive” individuals of a “legally

protected interest,”6 but no individual has such an interest in

a type or level of environmental protection; (3) environmental

justice protects groups—“minority . . . or low income popu-

lations”—but equal protection is an individual, not a group

right7; and (4) a claimant challenging government action

approach might have on [members] of dierent races.” Id. at 2797 (Kennedy, J.,

concurring) (internal citations, quotation omitted).

3. Adarand, 515 U.S. at 237 (internal quotation, citation omited). As discussed

more fully below, challenged actions rarely survive strict scrutiny.

4. e Comprehensive Environmental Response, Compensation, and Liability

Act, §104(k)(5)(C)(x), 42 U.S.C. §9604(k)(5)(C)(x), authorizes grants of up

to $200,000 for browneld sites, and mandates that the U.S. Environmental

Protection Agency (EPA) “shall establish a system for ranking grant applications

. . . that includes” as a criterion the “extent to which a grant would address or

facilitate the identication and reduction of threats” to the health of minority

communities. at suggests greater attention to minority communities than to

identically situated non-minority communities.

5. Another factor reducing the chance of a collision between the EO and equal

protection is that the EO “focus[es] attention on the environmental and health

conditions in minority communities,” in order “to promote non-discrimination

in Federal programs.” Presidential Memorandum on EO 12868 (Feb. 11, 1994).

Promoting non-discrimination is an important purpose of the Equal Protec-

tion Clause, and the use of racial information is an essential tool in identifying

discrimination. See, e.g ., Williams v. Hansen, 3 26 F.3d 569 (4th Cir. 200 3)

(rejecting the application of strict scrutiny t o a decision to question only m i-

nority polic e ocers in a n investigation to determine if there are discrimi na-

tory practices ).

6. Adarand, 515 U.S. at 211.

7. Id. at 227.

D I A L O G U E

Equal Protection, Strict Scrutiny,

and Actions to Promote

Environmental Justice

by David F. Coursen

David F. Coursen is an attorney with the U.S. Environmental Protection Agency’s (EPA’s) Oce of General

Counsel. e views expressed are entirely his own and do not necessarily represent the views of EPA or its Oce of

General Counsel. [Editors’ Note: A counterpoint article by Sheila Foster will appear in the May issue.]